Ethanol plant plan suffers court setback

September 06, 2006|by DON AINES

CHAMBERSBURG, Pa. - Penn-Mar Ethanol's appeal of a 2005 Franklin County Court of Common Pleas decision against a proposed ethanol plant in Greene Township has been dismissed by the Pennsylvania Commonwealth Court.

The court issued the two-sentence order Friday, ruling in favor of a motion by Citizens for a Quality Environment, which opposed the project, to dismiss the appeal for "loss of standing." The order also stated that oral arguments before the court scheduled for Sept. 11 had been canceled.

Penn-Mar was appealing a November ruling by Judge Richard Walsh that the Greene Township Zoning hearing board had erred last year in granting the partnership a variance to the township's height limitation and in deciding that an ethanol facility would be a permitted use in a heavy industrial zone. The zoning board's decisions had been appealed to the county court by Citizens for a Quality Environment and several area residents.

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The York, Pa., partnership subsequently appealed Walsh's decision to Commonwealth Court, but in August, Frederic Antoun, the attorney for the citizens group filed the motion to dismiss the appeal.

Penn-Mar had filed a motion with Commonwealth Court to defer a ruling on the motion to dismiss until after oral arguments, Antoun said.

Telephone messages left with Penn-Mar's president and project manager were not returned by Tuesday evening.

"This has nothing to do with the merits of the case," Antoun said Tuesday. Rather, it was based on Penn-Mar not having either purchased the land or maintaining the agreement of sale it had with the Letterkenny Industrial Development Authority, he said.

In February 2005, Penn-Mar entered into a sales agreement to purchase 55 acres in the Cumberland Valley Business Park for about $2.2 million. Penn-Mar had requested and received an earlier extension on the sales agreement, but requested another six-month extension in July, which the authority's board of directors declined to act upon.

When that sales agreement expired, Penn-Mar no longer had legal standing in the case, Antoun said. Legal standing, he said, has to be maintained throughout litigation.

"We're not sure it's the end until we go to the LIDA meeting next Monday and see if Penn-Mar is still trying to purchase the land," said DeEtta Antoun, the director of Citizens for a Quality Environment.

While the sales agreement was not extended, DeEtta Antoun said Penn-Mar could still buy the property and seek a conditional use permit from the township to operate an ethanol facility, a process that would require public hearings and possible conditions on the operation of an ethanol plant.

John Van Horn, the executive director of LIDA, said the authority has continued to have telephone conversations with Penn-Mar officials, the latest about a week ago, but he said he could not comment on the particulars of those talks.

Nothing related to Penn-Mar is on the agenda for Monday's meeting of the authority's board of directors, Van Horn said.

When the agreement of sale was first announced, Penn-Mar Project Manager Scott Welsh said the investors planned to build a plant to process about 20 million bushels of corn into 60 million gallons of the fuel additive each year. The plant, estimated to cost about $80 million at the time, would also have produced byproducts including livestock feed and carbon dioxide.